This is the eighteenth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”).  The first blog summarized the Cyber EO’s key provisions and timelines, and the subsequent blogs described the actions taken by various Government agencies to implement the Cyber EO from June 2021 through September 2022.  This blog describes key actions taken to implement the Cyber EO during October 2022.

I.  CISA, NSA, and ODNI Release Software Supply Chain Security Guidance for Suppliers 

In October 2022, the Cybersecurity and Infrastructure Security Agency (CISA), the National Security Agency (NSA), and the Office of the Director of National Intelligence (ODNI) released Part 2 in its series of recommended practice guides for securing the software supply chain (the “Supplier Guide”).  This second practice guide is for software suppliers—Part 1 of the guide is intended to be used by software developers, and the third (and final) guide will be targeted to software customers (i.e., acquirers).  Each of these guides is intended to supplement the Secure Software Development Framework (SSDF) published by the National Institute of Standards and Technology (NIST) pursuant to Section 4 of the Cyber EO.

According to the Supplier Guide, a software supplier acts as a liaison, or intermediary, between the developer and customer, and, as such, “retains primary responsibility over the following”:

  1. Maintaining the integrity of securely delivered software.
  2. Validating software packages and updates.
  3. Maintaining awareness of known vulnerabilities.
  4. Accepting customer reports of issues or newly discovered vulnerabilities and notifying developers for remediation.

The guide is intended to reflect “industry best practices and principles.”  It identifies key supplier objectives and recommends several broad categories of practices to achieve those objectives.  For each of these practice categories, the guide identifies scenarios that could be exploited (threat scenarios) and actions that could be taken to mitigate those threat scenarios.  For example, the guide outlines recommended mitigations for protecting the integrity of software code being developed either on premises or in a SaaS cloud solution, among many others.

The guide also has several appendices.  Of particular interest is Appendix C, “Supply-chain levels for Software Artifacts” (SLSA).  The SLSAs contained in this appendix address the four levels of security guidelines that are supposed to be tied to industry standards.   Appendix C designates which requirements apply to each of the four levels of SLSAs, with the fourth level representing the ideal end state for a secure software supply chain “from source to service.”

II. White House Issues Fact Sheet Detailing Past and Future Cybersecurity Efforts

On October 11, 2022, the Biden Administration issued a fact sheet that described various efforts that the Administration has undertaken to strengthen and safeguard the nation’s cybersecurity.  Among these efforts are several mandated by the Cyber EO.  The fact sheet demonstrates the Administration’s overall emphasis on implementation of the Cyber EO and its continued view of federal contracting as a lever to pull in that process.  Among other things, the fact sheet highlights that the Administration “issued a strategy for Federal zero trust architecture implementation, as well as budget guidance to ensure that Federal agencies align resources to our cybersecurity goals.”  Regarding procurement, the fact sheet states that “we are . . . harnessing the purchasing power of the Federal Government to improve the cybersecurity of products for the first time, by requiring security features in all software purchased by the Federal Government, which improves security for all Americans.”  As discussed in more detail below, the fact sheet also highlighted the White House’s plan to bring together private companies, associations, and Government agencies to discuss the development of a label for Internet of Things (IoT) devices “so that Americans can easily recognize which devices meet the highest cybersecurity standards to protect against hacking and other cyber vulnerabilities.”         

III. White House Holds Meeting to Discuss Cybersecurity Label for Consumer Internet-of-Things Devices

As previewed by the October 11 White House fact sheet (see section II above), the Biden Administration convened a meeting of representatives of industry, associations, and Government agencies on October 19, 2022 to discuss the Administration’s cybersecurity labelling program for IoT devices.  This program is based on labelling criteria developed by the IoT labelling pilot program conducted by NIST pursuant to the Cyber EO.  These criteria envision a physical label on the IoT device accompanied by a QR code that consumers could use to obtain further information regarding the cybersecurity vulnerabilities and resilience of the device, coupled with vendor self-attestations, and possible third-party certifications.  Speakers at the conference suggested that the Administration is planning a targeted rollout of a national cybersecurity labelling program in Spring 2023.

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Photo of Robert Huffman Robert Huffman

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance…

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance, contract claims and disputes, and intellectual property (IP) matters related to U.S. government contracts.

Bob has leading expertise advising companies that are defending against investigations, prosecutions, and civil suits alleging procurement fraud and false claims. He has represented clients in more than a dozen False Claims Act qui tam suits. He also represents clients in connection with parallel criminal proceedings and suspension and debarment.

Bob also regularly counsels clients on government contracting supply chain compliance issues, including cybersecurity, the Buy American Act/Trade Agreements Act (BAA/TAA), and counterfeit parts requirements. He also has extensive experience litigating contract and related issues before the Court of Federal Claims, the Armed Services Board of Contract Appeals, federal district courts, the Federal Circuit, and other federal appellate courts.

In addition, Bob advises government contractors on rules relating to IP, including government patent rights, technical data rights, rights in computer software, and the rules applicable to IP in the acquisition of commercial items and services. He handles IP matters involving government contracts, grants, Cooperative Research and Development Agreements (CRADAs), and Other Transaction Agreements (OTAs).

Photo of Susan B. Cassidy Susan B. Cassidy

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government…

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government contractors and represents her clients before the Defense Contract Audit Agency (DCAA), Inspectors General (IG), and the Department of Justice with regard to those investigations.  From 2008 to 2012, Ms. Cassidy served as in-house counsel at Northrop Grumman Corporation, one of the world’s largest defense contractors, supporting both defense and intelligence programs. Previously, Ms. Cassidy held an in-house position with Motorola Inc., leading a team of lawyers supporting sales of commercial communications products and services to US government defense and civilian agencies. Prior to going in-house, Ms. Cassidy was a litigation and government contracts partner in an international law firm headquartered in Washington, DC.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

Photo of Ryan Burnette Ryan Burnette

Ryan Burnette advises defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts and subcontracts, and has recognized expertise in national…

Ryan Burnette advises defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts and subcontracts, and has recognized expertise in national security related matters, including those matters that relate to federal cybersecurity and federal supply chain security. Ryan also advises on government cost accounting, FAR and DFARS compliance, public policy matters, and agency disputes. He speaks and writes regularly on government contracts and cybersecurity topics, drawing significantly on his prior experience in government to provide insight on the practical implications of regulations.

Photo of Hannah Hummel Hannah Hummel

Hannah Hummel is an associate in the firm’s Washington, DC office. She is a member of the Litigation and Investigations and the Government Contracts Practice Groups.